
3028 



\ 




LIBRARY OF CONGRESS, 

CIiapT./.L 3 (?o^ifght No 

Sh<fl£JZ3L_. 



UNITED STATES OF AMERICA. 
jj 



t^ ffflbltpm Society of (ttett ^gotrR 



3ncor$orafeb (&ytit 20, 1885 




£o ytromof e f 0e ft nouof e&0C emo sfuo^ of f 0e 
TOorfts of H&m. JifMleBjjeare, ano f?e 



In Executive Committee— June tsth t *f88$, 
fiesolved, That in order that the papers printed under authority of this Society 
may be of the highest character, and of value from all standpoints, the Society 
does not stand pledged as responsible for the opinions expressed or conclusions 
arrived at in the said papers, but considers itself only responsible in so far as it 
certifies by its Imprimatur that it considers them as original contributions to 
Shakespearean study, and as showing upon their face, care, labor and research, 



publications of Gbe Sbafcespeare Societg of 1ttew loth 

' mo. 12 



IN RE SHAKESPEARE'S 

"LEGAL ACQUIREMENTS" 

Notes by an Unbeliever Therein 



BY 

WILLIAM C. DEVECMON, Esa, A. M. 

Of the Maryland Bar 
(A Member of the Shakespeare Society of New York) 



NEW YORK 

THE SHAKESPEARE PRESS 
Printers to the Shakespeare Society of New York 



LONDON : KEG AN PAUL, TRENCH, TRUBNER & CO., LTD. 

.1899 






3f* v 









ft // 



■i'br. 



*0' C f 



^J 



•5 



42730 

Copyright, 1899, 

BY 
WILLIAM C. DEVECMON. 



All rights reserved. 



TWO C /ED, 



Of C0»fii 






^1899 



%*," / 




SE< . . n COPY, 






CONTENTS. 



CHAPTER PAGE 

I. Shakspeare not Necessarily a Lawyer because 

He Used Legal Terminology, i 

II. How Shakespeare Has Been Made a Lawyer, . 13 

III. Some Later Converts to the Shakespeare-Law- 

yer Doctrine, 24 

IV. An English Queen's Counsel's Remarkable 

Opinion, 27 

V. Some of Shakespeare's Errors in Legal Ter- 
minology, ' 32 



IN RE SHAKESPEARE'S LEGAL 
ACQUIREMENTS. 



I. 



SHAKESPEARE NOT NECESSARILY A LAWYER BE- 
CAUSE HE USED LEGAL TERMINOLOGY. 

England is, and always has been, the true home 
of the lawyer; and the Englishman takes as natu- 
rally to a legal contest as the Irishman to a rough 
and tumble fight, or the Frenchman to a duel. In 
no country in the world have the bench and the bar 
been held in so high esteem as in England. While 
in all other parts of Europe the pulpit or the sword 
afforded the only avenues of employment for a 
gentleman, and the only means for social or politi- 
cal advancement, in England ambition has always 
found an ample arena in the legal forum. Prior to 
the reign of Queen Anne, science, literature, and art 
were lightly regarded, but the lawyer has always 
been, in English estimation, second only to the 
soldier.- (Bacon himself was esteemed by his con- 
temporaries for his legal rather than his scientific 
or literary attainments. Hooker's famous state- 
ment that " law hath her seat in the bosom of God; 
her voice is the harmony of the world," has ever 



2 m RE SHAKESPEARE'S 

been applied literally by Englishmen to the Com- 
mon Law. A love of law, a spirit of litigation, a 
tenacious and pertinacious determination to main- 
tain his legal rights at all hazards and at every cost 
are characteristics of every trueborn Englishman. 
Von Ihering, in his remarkable work, " The Strug- 
gle for Law," to which I shall have occasion 
hereafter to refer, says " We [on the Continent] 
frequently see the typical figure of the traveling 
Englishman who resists being duped by inn- 
keepers and hackmen, with a manfulness which 
would induce one to think he was defending the 
law of Old England — who, in case of need, post- 
pones his departure, remains days in the place, and 
spends ten times the amount he refuses to pay. The 
people laugh at him, and do not understand him. 
It were better if they did understand him. For, in 
the few shillings which the man here defends, Old 
England lives." 

The English love for law, and even for its intrica- 
cies, subtleties, and fictions is visible in all English 
history and literature. Blackstone's " Commenta- 
ries" were written, not for professed students of law, 
but as an advanced course of study for the English 
gentleman. The fascination that courts and the 
law had for Dickens is manifest throughout his 
novels, while Dr. Johnson never ceased to regret 
that he had not actively embraced the legal profes- 
sion; but these are mere illustrations, and to mul- 
tiply instances of this kind were tedious. This 
English Characteristic is manifest in every age of 
English life; it is pre-eminently so in the Eliza- 



LEGAL ACQUIREMENTS. % 

bethan era. Then was witnessed the great struggle 
between the Common Law and Chancery. The re- 
cently enacted Statute of Uses was the occasion of 
a great multitude of cases involving the title to real 
estate. It was emphatically an age of litigation. 
And the spirit of their race and times seized 
strongly on the Shakespeare family. There was a 
fortnightly court held at Stratford-on-Avon; and 
though all its records have not been preserved, it 
appears, from such as remain, that John Shakes- 
peare, from his first settlement in that town about 
1551 or 1552 down to 1600, was engaged either as 
plaintiff or defendant in nearly fifty law-suits. Be- 
sides he frequently served as juror, assessor of 
fines, and as arbitrator. His son, the future poet, 
was thus brought up in an atmosphere of litigation. 
That the little provincial town of Stratford, having 
at that time about 1800 inhabitants, with little or no 
commerce or intercourse with the outside world, 
was able to support a half dozen or more attorneys, 
with a session of court every two weeks, shows a 
most extraordinary amount of litigation. It may 
well be imagined that the greater part of the male 
population of Stratford was in constant attendance 
at the sessions of the court; that the arguments of 
the lawyers, the verdicts of the juries, and the judg- 
ments of the court were in the long evenings re- 
hashed over and over again by these worthies of 
Stratford in the midst of their potations of home- 
brewed ale, in the love of which they excelled no 
less than in the love of litigation, there being at the 
time about thirty alehouses in the town. 



4 IN RE SHAKESPEARE'S 

John Shakespeare was a man of prominence and 
importance in Stratford, for twenty years holding 
office of one kind or another; and, as high bailiff, 
he presided over the court. 

From these circumstances it can readily be seen 
how Shakespeare acquired his extensive knowledge 
of legal expressions, and his love of litigation which 
involved him in almost as many law-suits as his 
father. It is noticeable that, while Shakespeare's 
works abound with law-terms, they are devoid of 
terms peculiarly applicable to Chancery practice or 
to Chancery jurisprudence. The High Court of 
Chancery s'at at London; the management of a suit 
therein was expensive; and Shakespeare had no op- 
portunity of attending its sessions. His father had 
two suits in that court, but apparently they were 
abandoned, he being the complainant in both cases. 

Such being the surroundings of Shakespeare's 
youth, in a bookless community, with a school 
where " small Latin and less Greek," and no Eng- 
lish at all, were taught, it might well be imagined 
that a bright, intellectual boy would find the best 
educational facilities were to be had by a faithful at- 
tendance at the sessions of court. And when we 
consider that Shakespeare's father was almost con- 
stantly there, and when we further consider his own 
evident fondness for the law, shown not only in his 
use of legal expressions, but in his frequent resort 
to the courts as litigant, his legal tastes and fond- 
ness for legal terminology are accounted for. But 
that he got this terminology wrong quite as often 
as he got it right is apparent to any serious exami- 



LEGAL ACQUIREMENTS. 5 

nation: certainly it is apparent to any lawyer not 
tempted by an appetite for tours de force, or burning 
to make a fellow-barrister out of the greatest of 
dramatists ! 

When he arrived in London and was thrown into 
that brilliant society of lawyer-playwrights, he con- 
tinued to breathe the same legal atmosphere in their 
company at the taverns. Gifford, in his " Memoirs 
of Ben Jonson," says, " Domestic entertainments 
were, at that time, rare. The accommodations of 
a private house were ill calculated for the purposes 
of a social meeting, and taverns and ordinaries are 
therefore almost the only places in which we hear 
of such assemblies." The contemporary authority 
as to these meetings of the lawyers at the taverns 
is also ample. Dekker, in his " Gull's Hornbook " 
(1609) says: "There is another ordinary at which 
your London usurer, your stale bachelor, and your 
thrifty attorneys do resort; the price, three-pence; 
the rooms as full of company as a gaol. . . If they 
chance to discourse, it is of nothing but statutes, 
bonds, recognizances, audits, subsidies, rents, sure- 
ties, enclosures, liveries, indictments, outlawries, 
feoffments, judgments, commissions, bankrupts, 
amercements, and of such horrible matter." 

That the poets and actors of the period were deep 
drinkers, and that " The Mermaid " and other 
taverns and tippling houses were their customary 
meeting places, are matters of common knowledge. 
Chapman's " temperance " was noted as a quality 
rarely met with in a poet. — Warton's " Hist. Eng. 
Poetry," vol. iv., p. 276. 



6 W RE SHAKESPEARE'S 

To meet there and exchange jest and witticism 
in the midst of their " bumpers " was their ideal of 
pleasure and good-fellowship. In Dekker's " A 
Knight's Conjuring," 1607, a number of poets are 
introduced together in the Elysian fields. " Be- 
yond all these places there is a groave which stands 

by itself like an iland This is called The 

Groave of Bay-trees, and to this consort-room resort 
none but the children of Phoebus, poets and musi- 
tians." To this Company is admitted Chettle, 
" sweating and blowing by reason of his fatnes, to 
welcome whom, because he was of old acquaint- 
ance, all rose up and fell presentlie on their knees 
to drink a health to all lovers of Helicon." 

What things have we seen 
Done at the Mermaid! heard words that have been 
So nimble, and so full of subtle flame, 
As if that every one from whence they came 
Had meant to put his whole wit in a jest, 
And had resolved to live a fool the rest 
Of his dull life. 

— Francis Beaumont to Ben Jonson. 

Souls of PoetS'dead and gone, 
What Elysium have ye known, 
Happy field or mossy cavern, 
Choicer than the Mermaid Tavern ? 

— Keats. 

But members of the legal profession were quite 
as frequent visitors to the taverns as the poets. 
For this we have a vast body of contemporary tes- 
timony. In Webster's " The Devil's Law Case," 
Sanitonella, a lawyer, complains, 



LEGAL ACQUIREMENTS. 7 

There's one thing too that has a vile abuse in it. 

Pros. What's that ? 

San. Marry, this,— that no proctor in term-time be tol- 
erated to go to the tavern above six times i' the forenoon. 

— Act V. scene 2. 

This same play also furnishes evidence that it 
was not merely the lawyers who were interested in 
legal gossip. 

San. Do you hear, officers ? 
You must take special care that you let in 
No brachygraphy-men [/. e. t stenographers] to take notes. 

Off. No, Sir? 

San. By no means : 
We cannot have a cause of any fame 
But you must have scurvy pamphlets and lewd ballads 
Engendered of it presently. 

—Act IV. scene 2. 



Sidney Lee, in his life of " William Shakespeare/' 
p. 32, n. 2, says, " Legal terminology abounded in 
all plays and poems of the period," the truth of 
which statement must be admitted by everyone at 
all familiar with Elizabethan literature. The whole 
population seems to have taken an interest in law 
and litigation. " Every man in those days was to 
a certain point his own lawyer; that is, he was well 
versed in all the technical forms and procedure. 
Therefore Counsel were brought into very close 
relations with their somewhat exacting clients, by 
whom they might be said to be chiefly instructed, 
the solicitor or attorney being rather in the position 
of an agent for the general conduct of cases " 



8 IN RE SHAKESPEARE'S 

(Hubert Hall's " Society in the Elizabethan Age," 
2d Edition, p. 141). 

That Shakespeare uses legal expressions rather 
more frequently than his contemporaries simply 
proves that he entered into the spirit of his times 
more fully than they. Wordsworth says of Milton 
that " his soul was like a star, and dwelt apart"; 
but Shakespeare was verily " the soul of his age," 
as Ben Jonson aptly described him, and, being 
its soul, he did not live apart from it, but in the very 
centre and the midst of it! 

John Webster was a contemporary of Shakes- 
peare. His father was a merchant tailor, and he 
himself is supposed to have followed that trade. 
In his play above mentioned, " The Devil's Law 
Case," occur more legal expressions (some of them 
highly technical, and all correctly used), than are to 
be found in any single one of Shakespeare's works. 
Among other legalisms, the law in regard to 
pre-contract (of which such capital is made by those 
who ascribe to Shakespeare great legal knowledge) 
is stated more fully than it is by Shakespeare, and 
quite as accurately. Webster doubtless acquired 
his knowledge of law in the same way in which I 
believe Shakespeare acquired his — that is, he ab- 
sorbed it from the legal atmosphere by which he 
was surrounded. 

•But, if the law was attractive to the poets, the 
stage seems to have had an equal fascination for 
the lawyers. Indeed, the ranks of the dramatists 
were largely recruited from the Inns of Court. 

There were contemporary with Shakespeare per- 



LEGAL ACQUIREMENTS. 9 

haps between seventy-five and a hundred writers of 
plays, and some of them were very prolific. 
Thomas Heywood said he " had either an entire 
hand or at least a main finger " in two hundred 
and twenty plays. Many were the authors of but 
one. A large percentage of the dramatic litera- 
ture of the period has not survived to modern 
times, and of most of the authors also only 
their names remain. Of those who are known to 
have had any trade, professional training, or occu- 
pation, I believe it would be a conservative estimate 
a say that twenty per cent, were in some way con- 
nected with the study of law. 

John Ford (1586- 1640) came of a family of law- 
yers. His mother was a sister of Sir John Popham, 
next to Coke the most famous lawyer of his age. 
He became in turn Attorney-General and Lord 
Chief Justice. Ford himself was a student in the 
Middle Temple in 1602, while his cousin and name- 
sake (to whom he dedicated " The Lover's Melan- 
choly ") was a member of Gray's Inn. 

John Marston (1575- 1634) was a student of the 
law. His father, a lecturer at the Middle Temple 
in 1592, by his will, proved in 1599, bequeaths "to 
sd. son John my furniture &c. in my chambers in 
The Middle Temple; my law books &c, to my sd. 
son whom I had hoped would have profited by 
them in the study of the law, but man proposeth 
and God disposeth." — Introduction to Bullen's 
" Marston," p. 13. 

Francis Beaumont (1 584-1616) was a student in 
the Inner Temple. His grandfather, John Beau- 



10 m RE SHAKESPEARE^ 

mont, had been Master of the Rolls ; and his father, 
Francis Beaumont, one of the Judges of the Court 
of Common Pleas. 

William Warner (i558?-i6o9) was " by his pro- 
fession an atturnye at the Common Plese." He 
was the author of " Albion's England," and of a 
play called " Syrinx." In 1595 his translation of 
Plautus' " Mensechmi " was published. Shakes- 
peare is said to have taken his " Comedy of 
Errors " from this play, and if he wrote it before 
1595 (which seems probable) it is possible he may 
have seen W r arner's translation in the manuscript. 
(See Dr. Morgan's Introduction to vol. xxii. of 
" The Bankside Shakespeare.") 

Abraham Fraunce (15 -16 ) was a lawyer; had 
been a student at Gray's Inn; and was recom- 
mended by Henry, Earl of Pembroke, to Lord 
Treasurer Burleigh in 1590 as a suitable person to 
be Her Majesty's Solicitor in that Court. He was 
the author of several dramatic pieces. 

Thomas Middleton (i570?-i627) was a student 
at Gray's Inn. 

Thomas Lodge (1 558-1625) was a student at 
Lincoln's Inn. Afterwards he became a physician. 

Thomas Kyd (15 -1596) was trained for his pa- 
ternal profession of a law scrivener. 

The above facts, as well as those given below of 
plays represented at the Inns of Court, may be 
easily verified by reference to Ward's " History of 
English Dramatic Literature," and to the well- 
known " Biographia Dramatica." 

Only those lawyer-dramatists have been men- 



LEGAL ACQUIREMENTS. II 

tioned whose ages were such as to render it prob- 
able that they came in contact with Shakespeare at 
some of the well-known taverns which were the 
common places of resort. Doubtless a fuller in- 
vestigation than I have made would discover 
others. 

Plays and masques were frequently represented 
at the different Inns of Court, sometimes in Latin, 
and nearly always written expressly for the occa- 
sion. The earliest English tragedy, " Ferrex and 
Porrex," said to be " the first dramatic piece of any 
consideration in the English Language," was acted 
on January 18, 1562, by gentlemen of the Inner 
Temple before the Queen. It was written by 
Thomas Sackville, afterwards Lord Buckhurst, and 
Thomas Norton, barristers. The latter subse- 
quently became Counsel to the Stationers' Com- 
pany. 

In 1566 two plays by George Gascoigne of 
Gray's Inn, " Jocasta " and " Supposes/' were 
there represented. In the composition of the for- 
mer he was assisted by Christopher Yelverton, who 
afterwards arose to Judicial dignity. 

" Tancred and Gismonda," under its original 
title of " Gismonda of Salerne," was represented 
before the Queen at the Inner Temple in 1568. 'It 
was written by Cristopher Hatton and five other 
gentlemen of the Inner Temple. 

" The Misfortunes of Arthur " was acted before 
the Queen in 1588. Eight members of the Society 
of Gray's Inn co-operated in its composition; and 
four other gentlemen of the Inn, one of whom was 



12 IN RE SHAKESPEARE'S 

Francis Bacon, devised the dumb shows introduc- 
ing the several acts. 

Francis Bacon also contributed to " The Prince 
of Purpoole," which was represented at Gray's Inn 
in 1594. 

In 1594 Shakespeare's " Comedy of Errors " was 
represented at Gray's Inn; and, in 1601, his 
"Twelfth Night" at the Inner Temple. (See 
Appleton Morgan's Introduction to vol. xxii. of 
" The Bankside Shakespeare.") 

In 1612 a masque by George Chapman was pro- 
duced by members of the Middle Temple and Lin- 
coln's Inn; and one by Francis Beaumont by the 
members of the Inner Temple and Gray's Inn in 
1613. (See Morley's Introduction to "Jonson's 
Masques," Carisbrooke Library, p. 23.) 

The above, of course, is not a complete list of 
such representations. " In those days . . . the 
Inns of Court vied with each other in masques and 
pageants as much as in the record of Chancellors 
and Chief Justices " (Strachey's Introduction to 
" Beaumont and Fletcher," Mermaid Series, p. 13). 



LEGAL ACQUIREMENTS. 13 



II. 

HOW SHAKESPEARE HAS BEEN MADE A LAWYER. 

It was the custom in Shakespeare's time for 
youth to leave school at fourteen or fifteen years 
of age; and it cannot be supposed that William at- 
tended school after reaching that age, in 1579. To 
account for what he did from then until 1586 has 
been a fruitful source of speculation for his biog- 
raphers. There are traditions that he was appren- 
ticed to a butcher, a glover, and nearly all the trades 
followed at Stratford, but none that he was an at- 
torney or an attorney's clerk. But his enthusiastic 
biographers felt under the necessity of accounting 
for these years when no scrap has been found to 
throw any light upon his life except the memoranda 
relative to the publication of the banns for his mar- 
riage and the birth of his children, and as each new 
biographer felt that he must add some new sugges- 
tion in order to distinguish himself from his prede- 
cessors, it was finally, in 1790, by Malone, supposed 
that he might have been a clerk in an attorney's 
office, thus killing two birds with one stone, and 
accounting not only for the barren seven years, but 
for the legal expressions to be found in his works. 
This new idea was eagerly taken up, and in 1858, 
Mr. T. Payne Collier sought the opinion of Lord 



14 IN RE SHAKESPEARE'S 

Campbell, the eminent author of " The Lives of the 
Chief Justices " and of " The Lives of the Lord 
Chancellors," who replied, in part, as follows: 
" Were an issue tried before me as Chief Justice at 
the Warwick assizes whether William Shakespeare, 
late of Stratford-upon-Avon, gentleman, ever was 
a clerk in an attorney's office in Stratford-upon- 
Avon aforesaid, I should hold that there is evidence 
to go to the jury in support of the affirmative, but 
I should add that the evidence is very far from 
being conclusive, and I should tell the twelve gen- 
tlemen in the box that it is a case entirely for their 
decision — without venturing even to hint to them, 
for their guidance, any opinion of my own. Should 
they unanimously agree in a verdict either in the 
affirmative or negative, I do not think that the 
court, sitting in banco, could properly set it aside 
and grant a new trial. " 

The learned Lord Chancellor then proceeds to 
give his views in detail, and though he says that 
if the issue were tried before him he would not 
venture even to hint to the jury an opinion of his 
own, he has no such scruples when addressing Mr. 
Collier or the readers of his published book; he 
scorns the idea that the " gentle Shakespeare " 
could have been engaged in killing calves or work- 
ing in leather, and thinks it highly improbable that 
he could have followed any meaner occupation than 
that of an attorney's clerk, and adds " perhaps his 
employer sent him up to the metropolis to conduct 
suits before the Lord Chancellor or the superior 
courts of common law at Westminster, according 



LEGAL ACQUIREMENTS. 15 

to the ancient practice of country attorneys who 
would not employ an agent to divide their fees." 

The reasons given by Lord Campbell for the faith 
that was in him, besides the legalisms in the plays, 
are as follows: 

" ' Envy does merit as its shade pursue;' 

and rivals whom he surpassed, not only envied 
Shakespeare, but grossly libeled him. Of this we 
have an example in ' An Epistle to the Gentlemen 
Students of the Two Universities, by Thomas 
Nash,' prefixed to the first edition of Robert 
Greene's ' Menaphon ' (which was subsequently 
called ' Greene's Arcadia '), according to the title 
page, published in 1589. The alleged libel on 
Shakespeare is in the words following, viz.: 

" * I will turn back to my first studies of delight, 
and talk a little in friendship with a few of our triv- 
ial translators. It is a common practice nowadays, 
amongst a sort of shifting companions that run 
through every art and thrive by none, to leave the 
trade oi Noverint whereto they were born, and busy 
themselves with the endeavors of art, that could 
scarce Latinize their neck-verse if they should have 
need; yet English Seneca, read by candle light, 
yields many good sentences, as blood is a beggar, 
and so forth ; and if you entreat him fair in a frosty 
morning, he will afford you whole Hamlets; I 
should say whole handfuls of tragical speeches. 
But, O grief! Tempus edax rerum — what is it that 
will last always? The sea exhaled by drops will in 
continuance be dry; and Seneca, let blood, line by 



16 IN RE SHAKESPEARE'S 

line and page by page, at length must needs die to 
our stage/ " 

The term " Noverint " was applied to lawyers 
because in Elizabeth's time most legal documents 
were in Latin, and began " Noverint universi per 
presentes" 

Lord Campbell continues: " In 1592 Greene fol- 
lowed up the attack in his ' Groat's Worth of Wit/ 
in the following language: ' There is an upstart 
crow, beautified with our feathers, that with his 
Tyger's heart wrapped in a player's hide, supposes 
he is as well able to bombast out a blank verse as 
the best of you; and being an absolute Johannes 
Fac-totum, is in his own conceit the only Shakes- 
scene in a country.' " 

Upon these slender thread's Lord Campbell hangs 
these conclusions: " Therefore, my dear Mr. Payne 
Collier, in support of your opinion that Shakespeare 
had been bred to the profession of the law in an at- 
torney's office, I think you will 'be justified in say- 
ing that the fact was asserted publicly in Shakes- 
peare's lifetime by two contemporaries of Shakes- 
peare, who were engaged in the same pursuits with 
himself, who must have known him well, and who 
were probably acquainted with the whole of his 
career." 

It seems to me impossible for a logical mind to 
draw such a conclusion. There is no legitimate 
connection between the two extracts by which it 
can be asserted that they both refer to the same per- 
son. Standing by itself, the quotation from Nash 
cannot be made to refer to Shakespeare unless the 



LEGAL ACQULREMENTS. *7 

reference to Hamlet has this effect; while Greene 
does not refer to him as connected with the Law! 

Nash was notorious for an envious and quarrel- 
some disposition, and it is idle, and indeed against 
the known facts, to suppose that Shakespeare was 
the only dramatist who could excite his animosity. 
His paper war with Dr. Harvey is one of the bit- 
terest of which we have any record. Refer- 
ring to this controversy, Sir John Harrington, a 
contemporary poet, addressed the following verses 
to Dr. Harvey: 

The proverb says, who fights with dirty foes 
Must needs be foiled, admit they win or lose: 
Then think it does a Doctor's credit dash 
To make himself antagonist to Nash. 

Thomas Freeman's Epigrams, 1614, contains the 
following: 

OF THOMAS NASH. 

Nash, had Lycambes on earth living been 
The time thou wast, his death had been all one; 

Had he but moved thy tartest Muse to spleen 
Unto the fork he had as surely gone : 

For why ? there lived not that man, I think, 
Us'd better or more bitter gall in ink. 

A MS. Epitaph runs thus: 

Here lies Tom Nash, that notable railer, 
That in his life ne'er paid Shoemaker or tailor. 

In Dekker's " A Knight's Conjuring, Done in 
Earnest, Discovered in Jest," alluded to above, the 



•'•v- 



1 8 IN RE SHAKESPEARE'S 

associate poets represented as consorting in the 
Elysian fields are Peele, Greene, and Marlowe. 

To this company — when it is proposed to enlarge 
it by the addition of Nash, that poet is brought in 
thus. " . . Whil'st Marlowe, Greene, and Peele 
had gotten under the shades of a large vyne, laugh- 
ing to see Nash (that was but newly come to their 
colledge) still haunted with the sharpe and satyri- 
call spirit that followed him here upon earth; for 
Nash inveyed bitterly, as he was wont to do," etc. 
Such evidences of Nash's bad temper, and the gen- 
eral dislike in which he was held, might be multi- 
plied. (See Dodsley's " Old Plays," vol. ix. p. 7.) 

Now it is certain that Shakespeare was not " bom 
to the trade of Noverint "; but the number of con- 
temporary dramatists who are known to have been 
connected with the legal profession by birth or edu- 
cation is large as above shown, and any of them 
might have excited Nash's envy. Indeed, his hand 
seems to have been against every man, and every 
man's hand against him. 

Nor is the reference to " whole Hamlets " proof 
of a reference to Shakespeare. The story of Ham- 
let appears to have greatly interested the Eliza- 
bethan age. Why, it is not so clear. Belleforest's 
" translation " of Saxo Grammaticus' " Amleth " 
was practically a new work. It was, as anybody 
can see from comparing the two versions, about 
six times as long.* And it added and padded and 
involved the original story to an extraordinary 
state of confusion. It was this Belleforest produc- 

* See The Bankside Edition of Hamlet— Appendix A. 



LEGAL ACQULREMENTS. 19 

tion (called Hamlet and not Amleth, because as 
Dr. Morgan has pointed out,* Frenchmen as well 
as Englishmen transposed their h's), written and 
published about 1570, and translated into English, 
which, if any, Shakespeare saw. Capell (in the 
Introduction to the first volume of his edition of 
Shakespeare, p. 52) says, " There can be no doubt 
made by persons who are acquainted with these 
things, that the translation is not much younger 
than the French original." 

Shakespeare's son Hamnet (in the Stratford doc- 
uments published by Halliwell-Phillipps, spelt Am- 
blet, Hamlet, and Hamnet) is by many supposed to 
have been named for Hamlet; he was born in 1585, 
certainly some years before the father could have 
written a play on the subject. 

Malone (Variorum, 182 1, vol. ii. p. 372), after 
quoting the passage from Nash above referred to, 
continues: " Not having seen the first edition of this 
tract till a few years ago I formerly doubted 
whether the foregoing passage referred to the trag- 
edy of Hamlet; but the word Hamlets being printed 
in the original copy in a different character from the 
rest, I have no longer any doubt on the subject. 
It is manifest from this passage that some play on 
the story of Hamlet had been exhibited before the 
year 1589; but I am inclined to think that it was 
not Shakespeare's drama, but an elder performance, 
on which with the aid of the old prose Historie of 
Hamblei, his tragedy was formed. The great num- 

* See " A Study in the Warwickshire Dialect," by Apple- 
ton Morgan, etc. (the third edition), p. 41. 



20 IN RE SHAKESPEARE'S 

ber of pieces which we know he formed on the per- 
formance of preceding writers, renders it highly 
probable that some others also of his dramas were 
constructed on plays that are now lost. . . Nash 
seems to point at some dramatic writer of that time 
who had originally been a scrivener or attorney, 
and instead of transcribing deeds and pleadings, 
had chosen to imitate Seneca's plays, of which a 
translation had been published many years before. 
Shakespeare, however freely he may have borrowed 
from Plutarch or Holinshed, does not appear to be 
at all indebted to Seneca; and I therefore do not 
believe he was the person in Nash's contemplation." 

Finally, Shakespeare himself said that " Venus 
and Adonis," which appeared in 1593, was the 
" first heir of [his] invention," and it would seem 
therefore that strong proof ought to be required 
before assigning an earlier date to any of his plays. 

Knight, referring to the same passage in Nash, 
says: " Does this description apply to him [Shakes- 
peare] ? Was he thriving by no art? In 1589 he 
was established in life as a sharer in the Black- 
friars' theater. Does the term ' whole Hamlets ' fix 
the allusion on him? It appears to us only to show 
that some tragedy called ' Hamlet/ it may be 
Shakespeare's, was then in existence; and that it 
was a play also at which Nash might sneer as 
abounding in tragical speeches. But it does not 
seem that there is any absolute connection between 
the noverint and the ' Hamlet.' Suppose, for ex- 
ample, that the ' Hamlet ' alluded to, was written by 
Marlowe, who was educated at Cambridge, and 



LEGAL ACQUIREMENTS. 21 

was certainly not a lawyer's clerk. The sentence 
will read as well; the sarcasm upon the tragical 
speeches of the ' Hamlet ' will be as pointed; the 
shifting companion who has thriven by no art, and 
has left the calling to which he was born, may study 
English Seneca till he produces ' whole Hamlets, 
I should say handfuls, of tragical speeches.' In the 
same way Nash might have said whole Tambur- 
laines of tragical speeches, without attempting to 
infer that the author of ' Tamburlaine ' had left the 
trade of Noverint. We believe that the allusion 
was to Shakespeare's ' Hamlet,' but that the first 
part of the sentence had no allusion to Shakes- 
peare's occupation. The context of the passage ren- 
ders the matter even clearer. Nash begins., ' I will 
turn back to my first text of studies of delight, and 
talk a little in friendship with a few of our trivial 
translators.' Nash aspired to the reputation of a 
scholar; and he directs his satire against those who 
attempted the labors of scholarship without the re- 
quisite qualifications. The trivial translators could 
scarcely latinize their neck-verse — they could 
scarcely repeat a verse of Scripture, which was the 
ancient form of praying the benefit of clergy. 
Seneca, however, might be read in English. We 
have then to ask, Was ' Hamlet ' a translation or 
an adaptation from Seneca? Did Shakespeare 
ever attempt to found a play upon the model of 
Seneca; to be a trivial translator of him; to trans- 
fuse his sentences into dramatic composition? If 
this imputation does not hold good against Shakes- 
peare, the mention of ' Hamlet ' has no connection 



22 IT RE SHAKESPEARE'S 

with the shifting companion who is thus talked of 
as a trivial translator. Nash does not impute 
these qualities to ' Hamlet/ but to those who busy 
themselves with the endeavors of art in adapting 
sentences from Seneca which should rival whole 
* Hamlets ' in tragical speeches. And then he im- 
mediately says, ' But, O grief! Tempus edax 
rerum; — what is it that will last always? The sea 
exhaled by drops will in continuance be dry; and 
Seneca, let blood line by line and page by page, at 
length must needs die to our stage/ " 

Lord Campbell himself seems to realize that his 
rea'ders will not agree with him in his belief that the 
extract from Nash has any tendency to prove that 
Shakespeare was ever connected with the law, for, 
at the end of his book (p. 138), he protests, " I am 
quite serious in what I have written about Nash and 
Robert Greene having asserted the fact; but I by 
no means think that on this ground alone it must 
necessarily be taken for truth. Their statement 
that he belonged to the profession of the law may 
be as false as that he was a plagiarist from Seneca." 

Lord Campbell, after giving the quotations above 
referred to, proceeds to analyze the plays, and finds 
legal expressions in all but fourteen of the thirty- 
seven plays usually attributed to Shakespeare. 

From the appearance of Lord Campbell's book 
down to the present time, the work of collecting 
these legalisms and writing ingenious essays to 
prove that they exhibit a profound knowledge of the 
law, has gone on with unremitting zeal, until the 
conclusion has been reached that Shakespeare was 



LEGAL ACQUIREMENTS, 23 

not a mere clerk, but was himself a profound law- 
yer; and the laborious and learned German Shakes- 
pearian, Karl Elze, thinks his hero must certainly 
have been a practicing attorney, because he has 
found two suits instituted for the recovery of small 
sums of money, wherein Shakespeare was the 
plaintiff, and in which no attorney's appearance is 
entered, and that accordingly, Shakespeare must 
have conducted them himself; while other scholars 
have gone so far as to assert that no less a lawyer 
than Francis Bacon could have written the plays. 



24 IN RE SHAKESPEARE'S 



III. 



SOME LATER CONVERTS TO THE SHAKESPEARE- 
LAWYER DOCTRINE. 

By far the ablest and most comprehensive con- 
tribution to the subject of Shakespeare's legal ac- 
quirements has been made by that eminent lawyer 
and statesman, Senator Cushman K. Davis, whose 
work of over three hundred pages was published in 
1884, quickly went through two editions and is now 
out of print. Senator Davis attaches no importance 
to Nash's reference to "Noverint"; but bases his 
argument entirely upon the internal evidence of the 
plays and poems. In all he finds that law terms 
have been used 312 times; but as he enumerates 
each repeated use of the same word, and as nearly 
all of them are used more than once, and many as 
often as four or five times, the number of distinct 
legal expressions is very much less. And there is 
a strained effort to discover legalisms where the 
average reader, even though he be a lawyer, would 
least suspect them; and to swell the list many words 
cited are not strictly legal words at all, e. g., 

Having ever seen in the prenominate crimes, 
The youth you breathe of, guilty, be assured. 

— " Hamlet," Act II. scene 1. 



LEGAL ACQUIREMENTS. 25 

Senator Davis' comment is : " Prenominate " is the 

synonym of " aforesaid." 

. . . See thou render this 
Unto my cousin's hand, Doctor Bellario. 

— " Merchant of Venice," Act III. scene 4. 

Here " render " is 'forced into service because " ren- 
dering and yielding as rent " is the phrase in leases. 

Among other words given as illustrations of 
legalisms are : bourn, edict, traitor, pardon, reprieve, 
respite, writ, oath, bail, execution, outlawry, ver- 
dict, jointure, dowry, attainder, distrained, inheri- 
tance, warrant (" There's law and warrant, lady, for 
my curse," " King John," Act II. scene 1), tene- 
ment, last will and testament, etc. The frequent 
use of such word's can have no tendency to* prove a 
knowledge of law. 

On the other hand, Senator Davis points out 
numerous instances where legal terms are correctly 
used with their strictly technical meanings; and he 
bases a strong argument on the cumulative effect 
of such repeated instances. Just how many of 
these there are it is a matter of some difficulty to 
say, as they are scattered through the book in the 
midst of such words as are mentioned above, which 
are not used in any legal or technical sense; but 
I believe they do not number over twenty-five or 
thirty. 

He further argues that " Shakespeare has a law- 
yer's conservatism. He respected the established 
order of things. . . There is nowhere [in his works] 
a hint of sympathy with personal rights as against 
the sovereign, nor with parliament, then first as- 



26 IN RE SHAKESPEARE'S 

suming its protective attitude toward the English 
people. . . In all his works there is not one direct 
word for liberty of speech, thought, religion — those 
rights which in his age were the very seeds of time, 
into which his eye of all men's could best look to 
see which would grow and which would not." 

To say that this spirit of " uncompromising 
feudalism " indicates a legal training is to make an 
assertion in the very teeth of history. Coke's spirit, 
which resisted the prerogative, which upheld the 
common law and chartered rights of the people, 
which maintained the equality of all men in the eye 
of the law, was and is typical of the lawyer. This 
is the " conservatism " which education in the law 
breeds in its devotees. All history proves it. That 
Shakespeare had none of this conservatism, that in 
" ' King John ' he ignored the Magna Charta, that 
he ever and always shows a patrician contempt for 
popular rights " — this proves, if it proves anything, 
that he had not a legal training. 

I believe an equal labor, an equally microscopic 
examination of the dramas, an equally ingenious 
application of all the references to medicine would 
prove with as much certainty that their author was 
a physician; but, so far as I am aware, none of the 
numerous writers upon his medical knowledge has 
as yet asserted that he either practiced or studied 
the science of Galen, to whom he so often refers. 

That his use of military expressions proves 
Shakespeare to have been a soldier has been seri- 
ously contended. (See W. J. Thoms's " Notelets 
on Shakespeare," London, 1865.) 



LEGAL ACQUIREMENTS. 27 



IV. 



AN ENGLISH QUEEN S COUNSEL S REMARKABLE 

OPINION. 

But most wonderful pronouncement of all, Mr. 
Edward James Castle, Q. C, in 1897 prints a book 
— " Shakespeare, Bacon, Jonson, and Greene " — in 
which he completely falls under the umbra of Lord 
Campbell as to the value and significance of these 
" legalisms " in the Plays. Mr. Castle divides 
Shakespeare's dramas into legal and iion-legal plays, 
discovering, or professing to discover, vast legal 
lore in the former and ignorance of the law in the 
latter. In his Introduction he states that his 
studies upon the subject were not made with a view 
to support a theory. But it would appear that, 
when Mr. Castle came to write his book, his 
" discovery " (to use his own word) warped his 
judgment. 

For even assuming that his theory is correct, 
that some plays show knowledge and others igno- 
rance of law; Mr. Castle's conclusion that the for- 
mer must have been or even probably were the joint 
production of Shakespeare and Bacon, or some 
other lawyer, who worked together as Beaumont 
and Fletcher did, is certainly a non sequitur. 
Writers of all times, when treating of technical sub- 
jects, have been wont to consult and take the advice 



28 IN RE SHAKESPEARE'S 

oi men skilled in those subjects; the novelist who 
introduces medical or legal subjects consults with 
a physician or lawyer — sometimes he correctly uses 
the knowledge he thus acquires, and sometimes he 
does not. Or, without consulting a specialist, he 
may have some familiarity with technical terms, and 
may use them with accuracy or otherwise. 

Mr. Castle's efforts to show real legal knowledge 
in the plays are labored in the extreme. The first 
instance he gives of legalisms fairly illustrates them 
all, and my criticism upon it is fairly applicable to 
them all. Shakespeare uses the word " color " as 
meaning "apparent, not real," which is its significa- 
tion when used as a law term. Mr. Castle devotes 
five pages of his work to detailing the various 
technical refinements drawn by the old lawyers in 
regard to " giving color " in pleadings, and assumes 
that, because " color " is used with its legal mean- 
ing, it must have been a lawyer who so used it, and 
that he knew all these technical refinements — an 
unwarranted presumption even in the case of a pro- 
fessional lawyer. Color, in its application to plead- 
ing, was, I believe, abolished in England by the pro- 
cedure act of 1852, and this may be some excuse for 
Mr. Castle's admitted ignorance (p. 20) on the sub- 
ject, but it is still in force in all states where the 
common-law procedure is in vogue, and the average 
lawyer, who knows little or nothing of the refine- 
ments in its use mentioned by Mr. Castle, refers to 
it familiarly in his everyday practice. But the use 
of the word color was not confined to the science of 
pleading; it was and still is used in other applica- 



LEGAL ACQUIREMENTS. *9 

tions with practically the same meaning: as " color 
of title," a title prima facie good, but for some rea- 
son, not apparent on its face, not good in fact; and 
" color of office," as where an act is done by an offi- 
cer under pretense that it is within his authority, 
when in truth it is not, it is said to be done under 
color of office, colore officii. The use of the word 
color in its legal sense of " apparent, not real " can- 
not certainly indicate profound knowledge of law, 
and it is simply absurd to assume that the mere use 
Of a technical legal term by Shakespeare indicates 
that he had a knowledge of all the hair-splitting 
logic which the ancient doctors of the common law 
used in applying legal doctrines and terms to par- 
ticular cases. The " rule in Shelley's case " any 
lawyer can define, but of its application in particular 
cases every lawyer is doubtful; the average layman 
is familiar with the phrase, but, according to Mr. 
Castle's logic, if a lay writer uses it this fact indi- 
cates that he is a profound lawyer and has a knowl- 
edge of all the vast learning and ingenious logic 
used in the application of the rule and embodied in 
many volumes of reports and text-books. 

Shakespeare, in common with his contemporaries 
and in common with observant men for many cen- 
turies previous to his time, knew that all terrestial 
bodies are attracted toward the center of the earth, 
and he several times refers to this fact; we must 
therefore believe, if we follow Mr. Castle's mental 
processes, that Shakespeare was familiar with the 
law of gravitation and all its applications; that he 
knew Newton's and Kepler's laws and all modern 



3° IN RE SHAKESPEARE'S 

astronomy. Old Capulet calls Juliet's fine distinc- 
tion between being proud of the County Pams and 
being thankful for him — "chop logic." * I know of 
no other term so apt and appropriate to apply to 
Mr. Castle's book. 

But if he was unfortunate in his efforts to dis- 
cover legal knowledge in the " legal " plays, he be- 
comes positively puerile when he undertakes to 
prove lack of such knowledge in the " non-legal " 
plays. After a careful search through the many 
pages devoted to this part of his work I have failed 
to discover a single instance given by him of any real 
blunder in the use of legal terms. The following 
quotations fairly illustrate his arguments here: 

" ' Plead my successive title with your swords.' 

" It is incongruous to speak of pleading with 
swords. Grotius speaks of the antagonism be- 
tween the law and arms; how in times of peace the 
former, and in war the latter, prevail. Cedant arma 
togce is the maxim for the first; Inter arma sileant 
[sic] leges for the second. 

" ' Successive title ' even shows more strongly 
want of legal training. Malone indeed, interprets 
it as meaning ' my title to the succession '; no doubt 
this is its meaning, but successive title means one 
title succeeding another, as successive waves, etc., 
and might perhaps be used where independent titles 

* " Romeo and Juliet," III. v. 150. The late Mr. S. S. Cox 
once referred to the speech of a fellow-congressman as 
s ' ehopstick logic," which is even more appropriate. 



LEGAL ACQUIREMENTS. 3 1 

follow one another; a somewhat difficult thing to 
conceive, as a title is continuous. 

" ' But yet I'll make assurance doubly sure 
And take a bond of fate.' 

" It is impossible to see, even by way of meta- 
phor, how killing Macduff is taking a bond of 
fate. . . It is mere sound, not sense, and the word 
is wrongly used. 

" 4 Our high-placed Macbeth 
Shall live the lease of nature, pay his breath 
To time and mortal custom.' 

" What mortal custom means it is difficult to say, 
unless perhaps, customary or common mortality. 
But it should be the lease from nature." 

How utterly inane and childish such criticism is! 
And yet Mr. Castle gives no better illustrations 
than these to prove Shakespeare's ignorance of law 
in what he calls the " non-legal " plays. 

The reader will notice that most of the instances 
hereinafter given of Shakespeare's mistakes in the 
use of legal terms are taken from Mr. Castle's 
" legal plays," to wit, " Hamlet," " Richard III.," 
" Henry VIII.," and " 3 Henry VI.," etc. 



K. 



3 2 IN RE SHAKESPEARE'S 



V. 

some of Shakespeare's errors in legal, 
terminology. 

For my part I see no profound knowledge of law 
displayed in the plays. It would indeed be strange, 
considering the surroundings of Shakespeare's 
birth and education, if he did not make frequent use 
of legal expressions. Could the universal genius, 
who apparently like his own creation, Posthumus 
Leonatus, had 

14 All the learnings, that his time 
Could make him the receiver of: which he took 
As we do air," 

have been brought up as it were within the four 
walls of a court house, with the litigants, jurors, and 
lawyers his daily companions, and have failed to 
absorb, aye, drink in as he did the air, digest and 
make -his own, a large fund of the legal lore of his 
surroundings? On the contrary, for him not to 
have done so would be a matter of infinite surprise. 
To me it seems that it ought to be apparent to 
any lawyer, who is not an enthusiast, that Shakes- 
peare's knowledge of law was simply a knowledge 
of legal expressions, with a fairly correct idea of 
their application such as any bright man attending 
court frequently and in daily companionship with 



LEGAL ACQUIREMENTS. 33 

lawyers could not fail to acquire; and that of the 
law itself he had no real knowledge, except such 
little as he could pick up in the manner indicated. 
Though the frequent use of legal terms, with 
their proper technical meanings, has a cumulative 
effect, and tends strongly to prove a legal training; 
yet a very few errors in such use, if glaring and 
gross, would absolutely nullify that effect and proof. 
Without presuming to rival the learning and in- 
genuity, the patience and labor bestowed by Lord 
Campbell and Senator Davis, I have collected some 
instances of inaccuracy in the use of law-terms 
which I believe destroy the force of their reasoning. 

Tell me what state, what dignity, what honor 
Canst thou demise to any child of mine ? 

— «' Richard III.," Act IV. scene 4. 

Dignities and honors could not be demised. — 3 
Comyn's Dig. Tit. Dignity (E), 2 Bl. Com. 36, 37. 

Besides, to be demanded of a sponge ! What replication 
Should be made by the son of a king ? 

— " Hamlet," Act IV. scene 2. 

A very few days, or, at most, weeks, of practical 
training in a lawyer's office would have sufficed to 
teach Shakespeare that this is an incorrect use of 
the word replication. The course of pleading is as 
follows : The plaintiff makes his demand on the de- 
fendant by a narratio or declaration; the defendant 
replies by a plea ; and the plaintiff's reply to this plea 
is called a replication. Certainly comment is here 
unnecessary. Apparently Shakespeare determined 
to make use of a legal expression even if he had to 



34 IN RE SHAKESPEARE'S 

do violence to it, to commit an assault on it, as it 
were, and lug it in by the ears. And the same may- 
be said of some of the other instances hereafter 
given. Shakespeare's was a learned and a pedantic 
age, and while he could not rival his more plod- 
ding contemporaries in their labored efforts to 
weigh down their works with classical allusions, 
none of them at all rivaled him in his knowledge of, 
and his reference to, that great world around him — 
all that he could see and hear. He knew the habits 
of birds and insects, the properties of herbs and 
flowers, and besides, soon had a grasp of all the 
knowledge of that brilliant gathering of play- 
wrights, his contemporaries and associates, among 
whom were lawyers, physicians, divines, and nearly 
all of whom were classical scholars. Like Leonatus 
he took his " learnings " as we do air; he breathed 
it in; he absorbed it; he did not get it out of books. 
This is what Milton means when he contrasts Jon- 
son's with Shakespeare's learning: 

" Then to the well-trod stage anon, 
If Jonson's learned sock be on, 
Or sweetest Shakespeare, Fancy's child, 
Warble his native woodnotes wild." 

But legal expressions are highly technical, and 
when Shakespeare attended those feasts of the law 
in courts and in gatherings of attorneys, and car- 
ried away scraps, it is not at all surprising that he 
should occasionally commit an error when he used 
them so frequently. And when, in a comparatively 
few instances, his applications of law terms are so 
highly technical and so correctly given as to sug- 



LEGAL ACQUIREMENTS. 35 

gest a lawyer's touch, can we not readily believe 
that here he took advice of some lawyer friend? 
In the very nature of things he must have had many 
such friends. 

Till you compound whose right is worthiest 

We, for the worthiest, will hold the right from both. 

— " King John," Act II. scene i. 

And we here deliver, 
Subscribed by the consuls and patricians, 
Together with the seal o' the senate, what 
We have compounded on. 

— " Coriolanus," Act V. scene 6. 

Content you, gentlemen; I will compound this strife; 
'Tis deeds must win the prize; and, he of both, 
That can assure my daughter greatest dower 
Shall have Bianca's love. 

— " The Taming of the Shrew," Act II. scene i. 

To compound (though cited as a legalism by 
Senator Davis) is in all these cases used in the gen- 
eral sense of to settle or determine; but, in a legal 
sense, it is to settle in a particular manner, as where 
a creditor agrees to receive part of his debt in satis- 
faction of the whole ; or, in criminal law, where one 
receives a consideration to refrain from prosecuting 
a wrongdoer, as when one whose goods have been 
stolen agrees not to prosecute the thief if the goods 
are returned, which is called " compounding a fel- 
ony," where the theft amounted to a felony. To- 
day, in general literature, the word is used in pretty 
much the same sense in which Shakespeare uses it 
— perhaps this is due to the force of his great 
example. 



36 IN RE SHAKESPEARE'S 

For if a king c bid a man be a villain, he is bound by the 
indenture of his oath to be one. 

— " Pericles," Act I. scene 3. 

Here the oath of allegiance is referred to. The 
use of the word " indenture " is entirely out of 
place. 

" ' An indenture ' was a writing containing a con- 
veyance, bargain, or contract . . . between two or 
more parties, consisting of the same matter written 
twice or oftener on the same sheet with a space 
between, where, after execution, the parchment was 
cut in a serrated or indented line, and a part 
delivered to each of the parties." — Burrill's Law 
Dictionary. 

The word indenture has survived to modern 
times, though actual indenting or cutting is never 
done; but in Shakespeare's time it seems actual in- 
denting was necessary to constitute an " inden- 
ture " (5 Co., 21, Stile's Case), and it was so in 
Maryland until 1794, when it was abolished by 
chapter 57 of the Acts of that year. 

An oath never (and ex vi termini not an oath of 
allegiance, it being unilateral) had anything to do 
do with an indenture or an indenture with an oath. 

Gtend. Come, here's the map; shall we divide our 
right 
According to our threefold order ta'en ? 

Mort. The archdeacon hath divided it 
Into three limits very equally. 

Hot. Me thinks my moiety, north from Burton here, 
In quantityequals not one of yours. 

— '• 1 Henry IV.," Act III. scene 1. 



LEGAL ACQUIREMENTS. 37 

Moiety (L. Lat. mediatas) does not mean a third. 
A half; one of two equal parts. — Co. Litt. 34 a, b. 

It is to be noted, however, that some modern law- 
yers and text-writers use the word moiety as inac- 
curately as Shakespeare, as though it could mean 
a third, or any part. 

I do believe, 
Induced by potent circumstances, that 
You are my enemy, and make my challenge. 
You shall not be my judge, 

I do refuse you for my judge, and here 
Before you all, appeal unto the pope. 

— " Henry VIII.," Act II. scene 4. 

To " challenge " is to object or except to those 
who are returned to act as jurors, either individ- 
ually or collectively as a body. The judge was not 
subject to challenge. 

In which our valiant Hamlet — 
For so this side of our known world esteemed him — 
Did slay this Fortinbras ; who by a sealed compact, 
Well ratified by law and heraldry, 
Did forfeit with his life. . . 

— " Hamlet," Act I. scene 1. 

Here " well ratified by " means " strictly in ac- 
cordance with." As a legalism its use is out of 
place. 

" Ratification is where a person adopts a con- 
tract or other transaction which is not binding on 
him because entered into by an unauthorized agent. 
Thus, if A enters into a contract on behalf of B, 
without having B's authority to do so, B may either 



3 8 IN RE SHAKESPEARE'S 

repudiate or adopt the contract; if he adopts it he 
is said to ratify it, and it then takes effect as if it 
had been originally made by his authority." — 
Rapalje & Lawrence's Law Die. 

Therefore our sometime sister, now our queen, 
The imperial jointress to this warlike State. . . 

— " Hamlet," Act I. scene 2. 

" Jointress, a woman who has an estate settled 
on her by her husband, to hold during her life if 
she survive him." — Co. Litt. 46. 

Jointure was one of the means used for barring 
dower. It was an estate settled on the wife before 
marriage, and in lieu of dower; if made after mar- 
riage, upon the husband's death the widow could 
either accept it or reject it and take her dower at 
common law (2 Bl. Comm. 137). 

Queen Gertrude could have neither a dower nor 
a jointure in the kingdom of Denmark. 

Boyet. So you grant pasture for me {offering to kiss her.] 
Mar. Not so, gentle beast; 
My lips no common are, though several they be. 

— •' Love's Labor Lost," Act II. scene 1. 

Shakespeare doubtless knew that one cannot at 
the same time hold a thing in common and in sev- 
eralty, and if so, he here sacrifices his knowledge 
for a mere play on words, which I fancy a profes- 
sional pride, if he had had any legal training, would 
not have permitted him to do. 

War. Why should you sigh, my lord? 
King H. Not for myself, Lord Warwick, but my son, 
Whom I unnaturally shall disinherit. 



LEGAL ACQUIREMENTS. 39 

But be it as it may: I here entail 

The crown to thee, and to thine heirs forever; 

Conditionally that thou here take an oath 

To cease this civil war, and, whilst I live, 

To honor me as thy king and sovereign; 

And neither by treason, nor hostility, 

To seek to put me down and reign thyself. 

— " 3 Henry VI.," Act I. scene i. 

Senator Davis admits an inaccuracy here. I 
quote his language (p. 199): " This is an attempt to 
grant the crown, subject to a condition subsequent. 
The use of the word entail here seems to be inac- 
curate, for, though the use of the word heirs is 
necessary to create a fee, so the word ' body ' or 
some other words of procreation are necessary to 
make it a fee tail. A gift to a man and his heirs, 
male or female, is an estate in fee simple and not 
in fee tail " (2 Bl. Comm., 114). 

You three, Biron, Dumain, and Longaville, 
Have sworn for three years' term to live with me, 
My fellow scholars, and to keep those statutes 
That are recorded in this schedule here. 
Your oaths are passed, and now subscribe your names. 
— " Love's Labor's Lost," Act I. scene 1. 

The word " statutes " is here used to mean simply 
articles of agreement. It has no such meaning in 
law. A statute is an act of the legislature of a 
country. " Statutes-merchant " and " statutes- 
staple " were the names of certain securities for debt 
in Shakespeare's time, and perhaps this gave him 
the idea that any agreement might be called a 
statute. 



40 IN RE SHAKESPEARE'S 

Adr. Why, man, what is the matter? 
Dro. S. I do not know the matter: he is 'rested on the 
case. 

— M The Comedy of Errors," Act IV. scene 2. 

He was not arrested " on the case." Civil actions 
at law are broadly divided into two classes: actions 
ex contractu, growing out of breach of contract, 
either express or implied, and actions ex delicto, for 
the recovery for wrongs independent of contract. 
The suit against Antipholus was of the former class, 
being for the recovery of the price of goods pur- 
chased from the jeweler; an action on the case is 
one of the actions ex delicto. 

Antipholus was actually placed under arrest 
upon the simple statement of the jeweler to an offi- 
cer that the former was indebted to him, without 
writ, warrant, or any process whatever. 

Sec. Mer. Therefore make present satisfaction, or I '11 
Attach you by this officer. 

Well, officer, arrest him at my suit, 

Ang. Either consent to pay the sum for me, 
Or I attach you by this officer. 
Here is thy fee ; arrest him, officer. 

— " The Comedy of Errors," Act IV. scene 1. 

Justice must be administered in a very primitive 
style, where one who claims that another is indebted 
to him can call an officer and say, " Here, officer, 
this man owes me money; arrest him." Lawyers 
and courts would be unnecessary, and no one could 



LEGAL ACQUIREMENTS. 4 1 

complain of the law's delay where such a summary 
method of procedure was permitted. 

Cant. For all the temporal lands, which men devout 
By testament have given to the church, 
Would they strip from us. 

— " Henry V.," Act I. scene i. 

The use of the word " testament." is here incor- 
rect. A testator bequeaths personal property by a 
" testament " ; he devises real estate by a " will." 

Antony. Moreover he hath left you all his walks, 
His private arbors, and his new planted orchards, 
On this side Tiber, he hath left them you, 
And to your heirs forever. 

— " Julius Caesar," Act III. scene 2. 

In regard to this passage Senator Davis says: 
" It is to be remarked that Antony, in speaking of 
the real estate left by Caesar to the Roman people, | 
does not use the appropriate word ' devise.' 
Shakespeare nowhere uses the word in connection 
with a will. It was also unnecessary for Caesar's 
will to have contained the expression ' to your heirs 
forever ' in order to give the people a perpetual 
estate in the reality." 

Shylock. Go with me to a notary ; seal me there 
Your single bond, and in a merry sport 
If you repay me not on such a day, 
In such a place, such sum or sums as are 
Expressed in the condition, let the forfeit 
Be nominated for an equal pound 
Of your fair flesh, to be cut off and taken 
In what part of your body it please th me. 

— " Merchant of Venice," Act I. scene 3. 



42 IN RE SHAKESPEARE'S 

It is hardly conceivable that any lawyer, or any- 
one who had spent a considerable time in a law- 
yer's office, in Shakespeare's age, could have been 
guilty of the egregious error of calling a bond with 
a collateral condition a " single bond." A single 
bond, simplex obligatio, is a bond without a collateral 
condition, but that described by Shylock is with 
collateral condition. It is possible that a lawyer in 
this age would be guilty of ignorance on this point; 
but hardly in Elizabeth's age, and least of all a law- 
yer in an inland town like Stratford. In our time, 
the use of sealed instruments except in cases of con- 
tracts in reference to real estate, contracts by cor- 
porations, and bonds with collateral condition, has 
largely ceased among merchants and business men 
generally, though still in frequent use by lawyers. 
This disuse of sealed instruments is, perhaps, 
chiefly due to the extension of the lex mercatoria, 
and the advantage of negotiability that pertains to 
most unsealed instruments, and is also undoubtedly 
largely due to the fact that almost all men can write 
their names, and that not to be able to do so is con- 
sidered a disgrace. Certain legal incidents, for his- 
torical reasons, still attach to sealed instruments; 
but, for practical business purposes, the private 
seal is now a useless survival of the Middle Ages. 
Its use has been abolished by statute in most of the 
Western States. But in Shakespeare's time the 
situation was entirely different. The seal was in 
universal use. Indeed it is beyond dispute that 
sometimes educated men belonging to the gentry, 
instead of writing their names themselves, would 



LEGAL ACQUIREMENTS. 43 

prefer to have them written by the draughtsman of 
the instrument which they were to sign and would 
themselves simply affix their seals, as being dis- 
tinctive of their house or family; and tradesmen 
who could write would merely make their marks, 
they being generally distinctive of their trade or 
calling. The probability is that in the small town 
of Stratford, having little or no commerce with the 
outside world, the use of the promissory note, bill of 
exchange, or any unsealed instrument was entirely 
unknown to its business people. Accordingly, it 
must be assumed that the difference between a 
single bond and a bond with a collateral condition 
was thoroughly understood by every lawyer and 
every lawyer's clerk in Stratford. 

But in this play, Shakespeare not only mani- 
fests his lack of knowledge of the technique of the 
legal profession; he shows a profound ignorance of 
law and of the fundamental principles of justice — 
unless we assume that the trial scene disregards all 
ideas of law, justice, and morality for mere dramatic 
effect; but it has been repeatedly shown by many 
writers that equal dramatic effect could have been 
attained witheut such sacrifice. 

Portia, as amicus curies, or referee, in " The 
Merchant of Venice " makes five distinct rulings 
which are bad in law, in logic, and in morals.* Shy- 

*See "Shakespeare in Fact and in Criticism," Appleton 
Morgan ; New York, Benjamin, 1888, p. 180. To make 
these errors more apparent, Dr. Morgan imagines the case 
of Shylock and Antonio, as decided by Portia, sent back 
for a new trial before Portia, and finally as reversed, as 
to every one of her rulings, by a full bench on appeal. 



44 IN RE SHAKESPEARE'S 

lock sues for the penalty under his bond. Portia 
decides that the contract is lawful, and that he has a 
right to the penalty. Ex turpe causa non oritur 
actio was a maxim of the Civil as well as the Com- 
mon law. Shakespeare was himself apparently 
familiar with it, for in " Henry VI.," Part II. Act 
V. Scene i, he says: 

" Who canst be bound by any solemn vow 
To do a murderous deed, to rob a man," etc. 

The action could no more have been sustained in 
Venice than it could in England. Yet Portia 
awards judgment. 

" A pound of that same merchant's flesh is thine, 
The court awards it, and the law doth give it." 

But she adds: 

" Tarry a little, there is something else. 
The bond doth give thee here no jot of blood, 
The words expressly are, a pound of flesh; 
Then take thy bond, take thou thy pound of flesh, 
But, in the cutting it, if thou dost shed 
One drop of Christian blood, thy lands and goods 
Are by the laws of Venice confiscate 
Unto the State." 

Well might Shylock exclaim " Is that the law? " 

Whoever heard of flesh without blood? A fig 
without seeds, a nut without a shell? 

The court, having pronounced judgment and 
awarded execution, tells Shylock that he must 
himself execute the judgment. He might well have 
answered, " I have come here for the court to give 
me justice, not to take the law in my own hands. 



LEGAL ACQUIREMENTS. 45 

I am not an officer of the court ; let the court's offi- 
cers execute its judgment, and let them be respon- 
sible for failure to do so properly. Even if the 
court gave a judgment for so much money I should 
perhaps render myself liable in an action for dam- 
ages if I attempted to collect it myself. It would 
be the business of the court, through its own offi- 
cers, to collect my money, and it is the business 
and duty of the court to deliver me my pound of 
flesh. I have no right to take it myself, and no 
court of justice can have the legal power or moral 
right to make a suitor therein responsible for the 
execution of its judgments. " 

But the next ruling is more remarkable than the 
former. Shylock says he will accept the tender of 
thrice the bond; but Portia answers "Thou shall 
have nothing but the penalty," and 

" If thou tak'st more 
Or less than a just pound, be it so much 
As makes it light or heavy in the substance 
Or the division of the twentieth part 
Of one poor scruple, nay, if the scale do turn 
But in the estimation of a hair, 
Thou diest, and all thy goods are confiscate." 

Can one imagine it being a criminal act for a 
creditor to take less than the amount due him? 

And, to cap the climax, this remarkable judge 
then rules that Shylock has forfeited the principal 
of his debt because he refused a tender. The 
climax? No; that was still to come. The court 
quickly resolves itself into one of criminal jurisdic- 
tion, and the Jew's goods and life are declared for- 



46 IN RE SHAKESPEARE'S 

feit: and for what? For having dared to make a 
contract which that same court had a moment be- 
fore declared valid and binding. And finally this 
judge, who had given utterance to that eloquent 
appeal for mercy, stands by while the Jew is re- 
quired, on pain of forfeiture of his life, to abandon 
the cherished religion of his fathers and his race, 
and embrace the hated religion of the Christian — 
an ingenuity of cruelty surpassing that of the 
thumbscrew or the rack. And all this; the three 
thousand ducats he had lent, all his property, and 
all the property which he might afterward acquire 
(for he was required to record in court a deed of 
gift of all he died possessed), his religion, and even 
his life — all forfeited because he had made a con- 
tract which the court held was valid and could be 
enforced. 

And, by the way, this deed of gift is another 
blunder in law. It is a fixed principle of the com- 
mon law that a man cannot convey a thing which 
he has not, though he afterward acquire it. Only 
things in esse, having an actual or potential exist- 
ence, were subjects capable of gift or grant 
(Comyn's Dig. Tit: Grant (D)). 

It has been suggested to the author of these 
papers that this deed of gift might have been valid 
as a gift causa mortis, or as a Will. But of course 
no lawyer need be told that it has not a single ele- 
ment necessary to the validity of a gift causa mortis, 
either under the Civil or Common law. Cooper's 
Justinian (ed. 1852), pp. 100, 476. 

To be sure instruments in the form of deeds have 



LEGAL ACQUIREMENTS. 47 

frequently been construed to be wills under the 
Common Law. " There is nothing that requires 
so little solemnity/' said Lord Hardwick (in Ross 
vs. Ewen, 3 Atkins, 163), " as making a Will of per- 
sonal property, for there is scarcely any writing 
which will not be admitted as such." In Maryland 
in 1883 a letter written by a decedent to his daugh- 
ter was held to be a valid will of personalty 
(Byers vs. Hoppe, 61 Md. 206). Indeed, any writ- 
ing signed by the party making a disposition of 
property to take effect after death, whether in the 
form of a deed, or whatever its form, might or could 
be construed to be a will. It would appear, how- 
ever, that this was not so by the Civil law. By it 
certain particular formalities were necessary in the 
making of a will (Cooper's Justinian, Ed. 1852, p. 
112, et seq.), and it is therefore improbable that a 
paper executed as a deed of gift, could, under that 
system, be adjudged to be a will. But Shylock's 
deed of gift of " all he died possessed " would not 
have been valid as a will of real estate which he 
might acquire after the date of its execution, any 
more than it would have been as a deed of gift as 
to " after-acquired " property. Other reasons of a 
technical nature might be given why this deed 
could not have taken effect as a will either under 
the Common law or the Civil law of Venice. But 
they are unnecessary. The deed of gift which Shy- 
lock was required to execute was not his voluntary 
act, and it is a contradiction in terms to speak of 
an involuntary act as a will or testament (which lat- 
ter word is essentially identical in meaning with 



48 IN RE SHAKESPEARE'S 

" will "). Testamentum ex eo appellatur, quod tes- 
tatio mentis sit. 

This deed of gift was required to be recorded 
" here in the court." The recital of such an in- 
strument (for a paper in the form of a deed always 
shows the consideration or cause of its execution) 
would show on its face that it was executed in pur- 
suance of a decree of the court, and not by the vol- 
untary act of the party. 

The court which passed upon Shylock's case did 
not observe the distinction of England between 
courts of law and equity, but assumed to act as both 
(indeed, it also assumed criminal jurisdiction). 
Now, a court of equity originally acted wholly by 
decrees in personam, and enforced its decrees in no 
other way than by fine and imprisonment for dis- 
obedience. Where, therefore, one obeys such a de- 
cree, he cannot be said to act voluntarily. 

Waiving, however, all fine distinctions, I con- 
clude: If Shakespeare desired to show his knowl- 
edge of law by indicating that a paper in the form 
of a deed may be considered a will; the method 
he uses to do so, of itself, shows gross ignorance of 
the fundamental principles of the law. Assuming 
that this was Shakespeare's intention, he — in effect 
— makes the court order and decree Shylock to 
execute a will, and file it in the court. If any court 
ever had such power, this is, I believe, the only re- 
corded instance of its exercise. But it is an 
absurdity in terms. Assuming, however, that the 
court had the power, its exercise would be futile, 
for, if the deed which Shylock executed was in fact 



LEGAL ACQUIREMENTS. 49 

a will, he could immediately afterwards have re- 
voked it and made a new and last Will and Testa- 
ment, thereby defeating the object of Portia's de- 
cree — a thing which could not be within the pur- 
view of the dramatic action of the Play. Portia's 
object was to compel Shylock to execute a paper 
which would have the finality of a judicial action. 
It is the last will that counts, just as in the case of 
deeds, it is the first. 

Of course, if Shylock died intestate, Jessica 
would inherit or succeed to his property, provided 
he did not afterwards remarry, and have other chil- 
dren; in which case she would only .have taken her 
pro rata share. But what would happen in case of 
intestacy is not under discussion. The question is, 
was the paper valid either as a will or as a deed? 
The result is that Portia's effort to vest Jessica 
(who had married a Christian) with Shylock's 
estate, real and personal, was as abortive and as 
ridiculous as any or all of her judicial pronounce- 
ments. Lawyers who, like my Lord Campbell and 
Senator Davis, desire to swear Shakespeare in as a 
lawyer learned in the law had best omit con- 
sideration of " The Merchant of Venice." 

I cannot close my reference to the law of this 
play better than by quoting again from Von Iher- 
ing: 

" The truth remains truth, even when the indi- 
vidual defends it only from the narrow point of view 
of his personal interests. It is hatred and revenge 
that takes Shylock before the Court to cut his 
pound of flesh out of Antonio's body; but the words 



5° IN RE SHAKESPEARE'S 

which the poet puts into his mouth are as true in it 
as in any other. It is the language which the 
wounded feeling of legal right will speak, in all 
times and in all places; the power, the firmness of 
the conviction, that law must remain Law, the lofty- 
feeling and pathos of a man who is conscious that, 
in what he claims, there is a question not only of 
his person but of The Law. ' The pound of flesh/ 
Shakespeare makes him say: 

" * The pound of flesh which I demand of him, 
Is dearly bought, is mine, and I will have it; 
If you deny me, fie upon your law; 
There is no force in the decrees of Venice. 

. . . I crave the law. 

« . . I stay here upon my bond.' 



<« < 



I crave the law.' In these four words, the 
poet has described the relation of the law, in the 
subjective, to law in the objective sense of the term: 
and the meaning of ' The Struggle for Law/ in a 
manner better than any philosopher of the law 
could have done it. These four words change Shy- 
lock's claim into a question of the Law of Venice. 
To what mighty, giant dimensions does not the 
weak man grow, when he speaks these words! It 
is no longer the Jew demanding his pound of flesh; 
it is the Law of Venice itself, knocking at the door 
of justice; for his Rights and the Law of Venice 
are one and the same; they must stand or fall 
together." 

We feel little pity for Shylock, but our sense of 
reverence for the law is shocked — the majesty of 
the Law is degraded. 



LEGAL ACQUIREMENTS. 5 1 

Thus I believe I have shown, though in a very 
brief and imperfect way, that Shakespeare had no 
knowledge of the technique of law, and no just ap- 
preciation of those fundamental principles of jus- 
tice which are the basis of all law. Though he 
excelled all other men who have ever lived in 
knowledge of, and in ability to portray, human 
nature in all its aspects, his ideas of human rights 
were narrow and bigoted. 

It has been said that Englishmen for generations 
took their religion from Milton, and their history 
from Shakespeare; but for their law they have 
looked and must look to an entirely different class 
of men. 



THE END. 



PUBLICATIONS AND PAPERS 



OF 



Gbe Sbaftespeave Society of IRew |?ork 



■ iiiiiiiiiiiiiiiiiiiimiiimiimiilimiiii 



L Ecclesiastical Law in Hamlet : The Burial of Ophelia 

R. S. Guernsey, Esq. i6mo. 

Ill* Shakespeare and Alleged Spanish Prototypes 

Albert R. Frey, Esq. i6mo. 

V.-VI. Time in the Play of Hamlet 

Edward P. Vining, A. M. i6mo. 

Once Used Words in Shakespeare 

James D. Butler, LL. D. i6mo. 

The First Shakespeare Society 

J. O. Halliwell-Phillipps, LL. D., F. R. S. 

VII. Digesta Shakespeareana 

Being a list of books, reviews, and magazine articles on 
Shakespearean subjects (exclusive of editions), from 1623 
to January 1, 1898. Dates, authors, and publishers. 

VIIL A Plea for a Reference Canon of the Plays 

Alvey A. Adee, A. M. i6mo. 

IX* Caliban. A Drama. By Ernest Renan 

Translated by E. Vickery. Introduction by Willis 
Vickery, A. M. i2mo, Bankside style. 

The Bankside Shakespeare 

The Tragedies, Histories, and Comedies first printed in 
quarto. Quarto and folio texts paralleled in facsimile and 
lines numbered and collated line by line. Twenty vol- 
umes, de luxe, i2mo. Edited by Appleton Morgan, LL. D. 

The Bankside Supplement 

The Comedy of Errors* Edited by Appleton Morgan, LL. D. 

X. A Study in the Warwickshire Dialect 

With Glossary. Appleton Morgan, LL. D. 

XI. A New Study of Shakespeare's Othello 

Welker Given, Esq. 

XII. In re Shakespeare's Legal Acquirements 

Notes by an unbeliever therein. 

By William C. Devecmon, Esq., A. M. 



THE SHAKESPEARE PRESS of New York City 

Printers to the New York Shakespeare Society 

P. O. Box 555 Westfield, Union County, New Jersey 



S & Bl lb99 



